[Amended 5-11-1976 by Ord. No. 88; 2-22-1983 by Ord. No.
112]
There shall be a Board of Appeals of five members
pursuant to the provisions of § 267 of the Town Law.
The Board of Appeals shall have all the powers
and duties prescribed by law and by this chapter, which are more particularly
specified as follows, provided that none of the following provisions
shall be deemed to limit any power of the Board that is conferred
by law:
A.
Interpretation. On appeal from an order, requirement,
decision or determination made by an administrative official, or on
request by an official, board or agency of the town, to decide any
of the following questions:
B.
Variances.
[Amended 9-16-1969 by Ord. No. 73; 4-11-1995 by L.L. No.
2-1995]
(1)
The Zoning Board of Appeals may reverse or affirm,
wholly or partly, or may modify the order, requirement, decision or
determination appealed from and shall make such order, requirement,
decision or determination as in its opinion ought to have been made
in the matter by the administrative official charged with the enforcement
of this chapter and to that end shall have all the powers of the administrative
official from whose order, requirement, decision or determination
the appeal is taken.
(2)
Use variances.
(a)
The Zoning Board of Appeals, on appeal from
the decision or determination of the administrative official charged
with the enforcement of this chapter, shall have the power to grant
use variances, as defined herein.
(b)
No such use variance shall be granted by the
Zoning Board of Appeals without a showing by the applicant that applicable
zoning regulations and restrictions have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals that for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
[1]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence.
[2]
The alleged hardship relating to the property
in question is unique, and does not apply to a substantial portion
of the district or neighborhood.
[3]
The requested use variance, if granted, will
not alter the essential character of the neighborhood.
[4]
The alleged hardship has not been self-created.
(c)
The Zoning Board of Appeals, in the granting
of use variances, shall grant the minimum variance that it shall deem
necessary and adequate to address the unnecessary hardship proven
by the applicant, and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power,
upon an appeal from a decision or determination of the administrative
official charged with the enforcement of this chapter, to grant area
variances, as defined herein.
(b)
In making its determination, the Zoning Board
of Appeals shall take into consideration the benefit to the applicant
if the variance is granted, as weighed against the detriment to the
health, safety and welfare of the neighborhood or community by such
grant. In making such determination the Board shall also consider:
[1]
Whether an undesirable change be produced in
the character of the neighborhood or a detriment to nearby properties
will be created by the granting of the area variance.
[2]
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance.
[3]
Whether the requested area variance is substantial.
[4]
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district.
[5]
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Board
of Appeals, but shall not necessarily preclude the granting of the
area variance.
(c)
The Zoning Board of Appeals, in the granting
of area variances, shall grant the minimum variance that it shall
deem necessary and adequate and at the same time preserve and protect
the character of the neighborhood and the health, safety and welfare
of the community.
(4)
The Zoning Board of Appeals shall, in the granting
of both use variances and area variances, have the authority to impose
such reasonable conditions and restrictions as are directly related
to the proposed use of the property. Such conditions shall be consistent
with the spirit and intent of this chapter, and shall be imposed for
the purpose of minimizing any adverse impact such variance may have
on the neighborhood or community.
(5)
Where the Zoning Board of Appeals finds the zoning
classification of a particular property to be conducive to the deprivation
of the reasonable use of the land or buildings and where the Board
of Appeals finds the same condition to apply generally to other land
or buildings in the same neighborhood or zoning districts said Board
shall call this condition to the attention of the Planning Board.
C.
Special permits.
(1)
In addition to such powers as may be conferred on it by statute, the Board of Appeals shall have the power, after public notice and hearing and on application, to issue special permits for any of the uses specified in the use regulations in Article III as requiring such permits in the particular district, except for the special permits required to be issued by the Town Board pursuant to Article III, § 200-17D, hereof. In issuing such special permit, the Board of Appeals shall take into consideration the public health, safety and welfare and the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular and may prescribe such appropriate conditions and safeguards as may be required in order that the result of its action shall, to the maximum extent possible, further the expressed intent of this chapter and the accomplishment of the following objectives:
[Amended 9-16-1969 by Ord. No. 73; 3-22-1983 by Ord. No.
111]
(a)
That all proposed structures, equipment or material
shall be readily accessible to fire and police protection.
(b)
That the proposed use shall be of such location,
size and character that, in general, it will be in harmony with the
appropriate and orderly development of the district in which it is
proposed to be situated and will not be detrimental to the orderly
development of adjacent properties in accordance with the zoning classification
of such properties.
(c)
That, in addition to the above, in the case
of any use located in or directly adjacent to a residential district:
[1]
The location and size of such use, the nature
and intensity of operations involved in or conducted in connection
therewith, its site layout and its relation to access streets shall
be such that both pedestrian and vehicular traffic to and from the
use and the assembly of persons in connection therewith will not be
hazardous or inconvenient to or incongruous with the said residential
district or conflict with the normal traffic of the neighborhood;
and
[2]
The location and height of buildings, the location,
nature and height of walls and fences and the nature and extent of
landscaping on the site shall be such that the use will not hinder
or discourage the appropriate development and use of adjacent land
and buildings.
(2)
In issuing a special permit, the Board may require
any walls, fences or landscaping which it deems necessary to protect
the value of adjacent properties or to prevent any hindering of the
appropriate development of adjacent land.
(3)
Each application for a special permit shall be accompanied
by a proposed plan showing the size and location of the lot, the location
of all buildings and proposed facilities, including access drives,
parking areas and all streets within 200 feet of the lot.
[Amended 9-16-1969 by Ord. No. 73]
(4)
Any use for which a special permit may be granted
shall be deemed to be a conforming use in the district in which such
use is located, provided that such permit shall affect only the lot
or portion thereof for which such permit shall have been granted.
[Amended 9-16-1969 by Ord. No. 73]
(5)
The Board of Appeals may require that special permits
be periodically renewed. Such renewal shall be granted following due
public notice and hearing and may be withheld only upon a determination
by the Board to the effect that such conditions as may have been prescribed
by the Board in conjunction with the issuance of the original permit
have not been, or are being no longer, complied with.
[Amended 9-16-1969 by Ord. No. 73]
D.
Temporary certificate of occupancy.
(1)
To authorize, upon denial by the Building Inspector
of a certificate of occupancy, the issuance of a temporary certificate
of occupancy by the Building Inspector, for a period not to exceed
90 days, for the completion of any alterations that are required under
the provision of any law or ordinance or for the completion of a part
of an uncompleted building, provided that the Board finds that:
[Amended 9-16-1969 by Ord. No. 73]
(a)
The denial of a certificate of occupancy prior
to completion of the said alterations or of the building would cause
unnecessary hardship; and
(b)
The safety of the occupants of the building
and of adjacent buildings and land would be adequately assured under
such terms and conditions as said Board may prescribe.
(2)
Such temporary certificate shall not be construed
as in any way altering the respective rights, duties or obligations
of the owner or of the Town respective to the use or occupancy of
the land or building, or any other matter covered by this chapter.
The powers and duties of the Board of Appeals
shall be exercised in accordance with the following procedure:
A.
The Board of Appeals shall not decide upon any appeal
for a variance, special permit or interpretation of this chapter without
first holding a public hearing. Notice of said hearing and of the
substance of the appeal or application shall be given by publication
in the official newspaper of the Town at least 10 days before the
date of such hearing. In addition to such published notice, the Board
of Appeals shall cause such notice to be mailed at least 10 days before
the hearing to all owners of property which lies within 500 feet of
any lot line of the property for which relief, approval or interpretation
is sought and to such other owners as the Board of Appeals may deem
advisable.
[Amended 9-16-1969 by Ord. No. 73; 12-15-2015 by L.L. No. 5-2015]
(1)
The names of said owners shall be taken as they appear
on the last completed tax roll of the Town.
(2)
Provided that due notice shall have been published
and that there shall have been substantial compliance with the remaining
provisions of this section, the failure to give notice in exact conformance
herewith shall not be deemed to invalidate action taken by the Board
of Appeals in connection with the granting of any relief, approval
or interpretation.
B.
All appeals and applications made to the Board of
Appeals shall be in writing and shall be accompanied by a fee in the
amount set by resolution of the Town Board in the Fee Schedule.[1]
[Amended 9-16-1969 by Ord. No. 73; 5-12-1987 by L.L. No.
3-1987; 9-11-2007 by L.L. No. 8-2007]
C.
Each appeal or application shall fully set forth the
circumstances of the case, shall refer to the specific provision of
the ordinance involved and shall exactly set forth, as the case may
be, the interpretation that is claimed, the details of the variance
that is applied for and the grounds on which it is claimed that the
same should be granted.
[Amended 9-16-1969 by Ord. No. 73]
D.
Should any appeal involve either of the two following
conditions, the Secretary of the Board of Appeals shall transmit to
the designated office or official a copy of the official notice of
the public hearing not later than 10 days prior to the date of the
hearing.
(1)
Any change in the boundaries of any district, which
change would occur within a distance of 500 feet of the boundary of
any village or town.
[Amended 9-16-1969 by Ord. No. 73]
(2)
Any change in the regulations prescribed for any district, any portion of which is located within 500 feet of the boundaries listed in Subsection D(1).
(3)
The designated official for counties shall be the
Clerk of the Board of Legislators. In villages and towns, the designated
official shall be the Clerk of the municipality.
[Amended 9-16-1969 by Ord. No. 73; 3-26-1985 by L.L. No.
2-1985]
E.
Prior to the date of any public hearing, the Secretary
of the Board of Appeals shall transmit to the Secretary of the Planning
Board a copy of any appeal or application, together with a copy of
the notice of such hearing. The Planning Board may submit to the Board
of Appeals an advisory opinion on said appeal or application at any
time prior to the rendering of a decision by the Board of Appeals.
F.
[2]Prior to final action, the Board of Appeals shall refer any matter involving any of the areas specified in Article XII, § 200-52E(1)(a) through (e), to the Westchester County Planning Board, in accordance with Section 277.61 of Chapter 277 of the Westchester County Administrative Code.
[Amended 9-16-1969 by Ord. No. 73; 3-26-1985 by L.L. No.
2-1985]
G.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board, shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of the said Board shall be by resolution, and each such resolution shall be filed in the office of the Town Clerk by case number, under one of the following headings: "interpretation," "variances" or "special permits," together with all documents pertaining thereto. Regarding its decision in each case, the Board of Appeals shall notify the Town of Ossining Building Inspector, Town Board, Town Planning Board and any designated official of an affected municipality or agency given notice of hearing as set forth in Subsection D.
[Amended 9-16-1969 by Ord. No. 73]
H.
All the provisions of this chapter relating to the
Board of Appeals shall be strictly construed. Said Board, as a body
of limited jurisdiction, shall act in full conformity with all provisions
of law and of this chapter in compliance with all limitations contained
therein.
[Amended 9-16-1969 by Ord. No. 73]
I.
Unless construction is commenced and diligently pursued
within 12 months of the date of the granting of a variance, such variance
shall become null and void.
J.
For those improvements or changes of use for which
special permit approval from the Board of Appeals is required, no
such improvements or change of use may be implemented and no building
permit or certificate of occupancy may be issued until:
[Added 4-11-1995 by L.L. No. 2-1995]
(1)
Special permit approval by the Board of Appeals for
said improvements or change of use is granted by resolution.
(2)
The special permit plans, revised if so required by
said resolution, have been signed by a duly authorized representative
of the Board of Appeals.
(3)
Site plan approval from the Planning Board has been
secured.
K.
Expiration of special permit approval.
[Added 4-11-1995 by L.L. No. 2-1995]
(1)
Approval of a special permit shall expire if:
(a)
The applicant has not secured site plan approval
within one year from the date of the adoption of special permit approval;
(b)
Site plan approval expires;
(c)
All required improvements are not maintained
and if all conditions and standards of the special permit approval
are not complied with throughout the duration of the approved use;
or
(d)
The approved use ceases to exist for any reason
for more than one year.
(2)
The Board of Appeals may extend the approval of a
special permit if, in its opinion, such extension is warranted by
the particular circumstances involved.
